Reply Brief — McWhorter v. Attorney Grievance Board

~ Supreme Court. U. S.

ee Ge ae

% E. D

‘al FEB 9 1996

NO. 95-982

CLERK

; IN THE

SUPREME COURT OF THE UNITED STATES

OCTOBER TERM 1995

ROBERT A. MCWHORTER,

Petitioner, |

v.

GRIEVANCE ADMINISTRATOR,

Respondent.

PETITION FOR WRIT OF CERTIORARI

TO THE SUPREME COURT

FOR THE STATE OF MICHIGAN

RESPONS™ TO BRIEF IN OPPOSITION

Robert A. McWhorter

pro se 7

4611 W. Main St.

Kalamazoo MI 49006

(616) 382-2287

TABLE OF CONTENTS

Statement of the Case

6 £66 @ © 6 6 82 2&2 6.6 “A 6.6 @ 8 © 8 FF

Reasons for Granting the Writ

8} aera eee ae a ae

Double Jeopardy .......--+e ee eeeeee

GO Pe eeCCeCLTeTCrerTes eee

Equal Protection. .........--+-e-e+ee6:

I algo a ae eek ek eee ee

In the Matter of Callanan, 440 Mich 1207;

487 NW2d 750 (1992)

Michigan Supreme Court Order

Emered Auguat 7, I9RE 2c casactuceatuseds la

In the Matter of Callanan, __Mich__;_.NW2d__(1995)

Michigan Supreme Court Order

Entered November 7, 1995 ..........eeee0. Ta

Attorney Discipline Board Attorney Grievance

Commission's Supplemental Brief Following

the Michigan Supreme Court Order of Remand ... 9a

-ii-

INDEX OF AUTHORITIES

Cases

City of Detroit v Judge of Recorders Court, 255 Mich 44;

DEE ‘tnaceecssestserserevcss 6

Clark v Jeter, 486 US 456, 100 S. Ct. 1910,

er TPP CEED pcaceccscecvesaees 10

Dobbert v Florida, 432 US 282; 53 L. Ed. 2d 344,

ee re z3

Galvin vy Press, 347 US 522, 530, 74 S. Ct. 737, 742,

Ee 5

Grievance Administrator v August, 438 Mich 296,

475 NW2d 256 (1991) ......... aS en alle 7,9

Harrison v Nelson, 394 U.S. 286, 89 S. Ct. 1082,

PP ECE sc cccdcscaeeacssecas 6

Hertz vy Woodman, 218 US 205, 30 S. Ct. 621,

MME ,ccncscdveseeeeseves 2

In Re Ruffalo, 390 US 544, 88 S.Ct. 1222,

EE EEG. MEDD 5 ec cece tee eeees 2,3

Lehr v Robertson, 486 US 248, 103 S. Ct. 2985,

rn CED once seas aeenaseuce 10

Masonite Corp, vy Martin, 314 Mich 411,

DT PET REE cc nocccsecsecseovenesce 8

Miller v Florida, 482 US 423, 107 S. Ct. 2446,

96 L. Ed. 2d 351 (1987) ... 2... cece ee eee 2,3

Nordlingler vy Hahn, _. US _., 112 S. Ct. 2326,

120 L. Ed. 2d 1 (1992)... 2... cece eee eeeee 10

Razatos v Colorado Supreme Court, 742 F. 2d 1492,

(10th Circ. 1984), cert den 471 US 1016,

105 S. Ct. 2019, 85 L. Ed. 2d 301 (1985) ........ 3

Rio Grand Irrigation & C, Co, v Guildersleeve, 174 US 603,

19 S. Ct. 761, 43 L. Ed. 1103 (1898) ........... 5

Steward v Poole, 196 Mich App 26; 492 NW2d 475

es Ska bd eS bees Oo 8 eee eRe SD 6

The Matter of Callanan, 440 Mich 1207;

487 NW2d 750 (1992) .........2 22 eee eee 10

U.S. v Halper, 490 US 435; 109 S. Ct. 1892,

Op tg). | era re 5

Michigan Constituti

Ast VI, $28, Mich. Const., 1963 .......0cc000. 1

-jv-

Court Rules

MCR 9.123 ...

MCR 9.123(B)(2)

MCR 9.123(D)(3)

MCR 9.124 ...

Statutes

MCL 337.41-47

6666 6 @ #8 68 6 4 6 8 @ © @ 82 42 2 6 2.2 8 2

i

STATEMENT OF THE CASE

There are material misrepresentations and

contradictions in Respondent's Brief. The Michigan Supreme

Court did not deny reinstatement to Petitioner, although that

is the effect of the court's decision. It found Petitioner to be

ineligible to reapply for reinstatement because five years had

not elapsed from the termination of Petitioner's parole status

to the time of his application.

This case involves the constitutional propriety of non-

equity results based decisions. Justice Cavanagh, in his

concurring opinion, acknowledges that the court adopted the

five year, post penal supervision, waiting rule because the

court disagreed with the decision of the Attorney Discipline

Board. In other words, the court, contrary to its own state

constitution, Art VI, §28, Mich. Const. 1963, conducted a

de novo review in violation of the due process clause of the

14th Amendment.

The court did not base its decision on the nature of

the offense. The court held that all persons seeking

reinstatement to the practice of law, placed on penal

supervision, must wait five years after the termination of that

supervision before they are eligible to seek reinstatement.

Implicitly, the court held that in reinstatement cases, it would

exercise de novo review, irrespective of the Michigan

Constitution, and, regardless of court rule, statute or

constitution, permanently disbar a given reinstatement

applicant, the facts not withstanding, if it so chose.

The five year, post parole, waiting requirement did

not exist prior to July 5, 1995, and could not be construed to

exist from a reasonable interpretation of existing court rules.

Grievance Administrator admits that the purpose of the

decision was "to prevent Petitioner's immediate reapplication

in the present case...". (Res. Brf. p. 11)

REASONS FOR GRANTING THE WRIT

In Hertz vy Woodman, 218 US 205, 30 S. Ct. 621, 54

L. Ed. 1001 (1909), this Court noted the need to promote

certainty, stability and predictability of law. Results based

decisions impair predictability and destabilize the law.

Results based decisions are arbitrary and capricious and tend

to corrupt the law. That risk is magnified when the court

and the prosecutor are employer/employee; it is realized

whea the court and the prosecutor, in this intertwined

relationship, impose retroactive rules changes, as in the

instant case.

Ex Post Facto

Respondent argues that: "The decision of the

Michigan Supreme Court simply presents a procedural

change, and is thus not ex post facto."(Res. Brf. p.15) This

is not true. The change was substantive and the procedure

has not changed. The five year post termination of penal

supervision rule did not exist in 1981 when Petitioner's

license was revoked. It did not exist when Petitioner applied

for reinstatement in April, 1992. It did not exist when

Petitioner went through five separate public hearings and

appeal to the Attorney Discipline Board, at substantial cost

of time and funds. The new eligibility fiat did not exist prior

to it retroactive application on July 5, 1995.

Respondent's reliance on Miller vy Florida, 482 US

423, 107 S. Ct. 2446, 96 L. Ed. 2d 351 (1987), and

Dobbert v Florida, 432 US 282; 53 L. Ed. 2d 344, 97 St.

Ct. 2290 (1977) is misplaced. The rule change in the instant

case is more analogous to the sentencing change in Miller

than as to who may make the final judgment in Dobbert.

This Court in In Re Ruffalo, 390 US 544, 88 S.Ct.

1222, 20 L. Ed. 2d 117, (1968) stated “disbarment...is a

2

punishment or penalty imposed upon the lawyer” and “quasi

criminal in nature.” In 1985, this Court reaffirmed its

holding in Ruffalo, when it denied certiorari in Razatos v

Colorado Supreme Court, 142 F. 2d 1492, (10th Circ.

1984), cert den 471 US 1016, 105 S. Ct. 2019, 85 L. Ed. 2d

301 (1985). The Razatos court also concluded that

disbarment proceedings were "quasi criminal in nature."

In Miller, this Court identified a two pronged test to

determine whether a particular action is ex post facto: (1) the

law or rule must be retroactively applied; and (2) it must

disadvantage the offender affected by it. Both are true in this

case. "A law is retrospective if it ‘changes the legal

consequences of the acts contemplated before its effective

date.” Miller at 430, 107 S. Ct. 630. Dobbert at 294, notes

that it is “axiomatic that for a law to be ex post facto it must

be more onerous than the prior law." Clearly, the new rule

is more onerous and ex post facto.

Double Jeopardy

Grievance Administrator states that “Petitioner has

always been subject to reinstatement criteria that would

require him to establish by clear and convincing evidence

that he is fit to resume the practice of law.” (Res. Brf. p. 17)

This argument is beside the point as the hearing panel and

Attorney Discipline Board held that Petitioner met that

standard. Petitioner met the standard that has been applied to

every other lawyer seeking reinstatement in the State of

Michigan since the adoption of the bifurcated system in 1978

but was declared, retroactively, ineligible to apply.

In order to deny reinstatement to this particular

Petitioner, the court created the legal fiction that the hearing

panel of three lawyers and the Attorney Discipline Board,

consisting of distinguished lawyers, such as George E.

3

Bushnell, Jr., past president State Bar of Michigan and

American Bar Association, and distinguished laymen, such

as Linda Hotchkiss, M.D., were incapable of making a

factual determination of whether Petitioner could safely be

recommended as a person fit to practice law or whether he

had a proper understanding and attitude toward the standards

that are imposed upon members of the Bar.’ Such legal

fiction is absurd. Judges and juries make these types of

decisions every day.

On March 1, 1994, the supreme court adopted MCR

9.123(D)(3) that provides that an attorney who has been

denied reinstatement may reapply "180 days from the

effective date of the most recent hearing panel order granting

or denying reinstatement." As additional punishment, the

court concluded that the three year period after the

termination of Petitioner's parole could not be considered in

evaluating Petitioner's fitness to practice law because

Petitioner was under "scrutiny" while Respondent appealed

and therefore Petitioner must wait until June 27, 1997, to

reapply.” Both MCR 9.123(B)(2) and MCR 9.123(D)(3) were

denied application to Petitioner.

' In this case, the Attorney Discipline Board considered whether

supervision had materially affected Petitioner's conduct as it pertained to

his reinstatement, remanded the issue for special hearing and concluded

that the extent of his supervision was so minimal as to be irrelevant. The

supreme court factually overruled the Board stating it was not the extent

but the fact of supervision that denied eligibility for reinstatement.

? Respondent orally argued to the supreme court that if Petitioner were

merely denied reinstatement, under MCR 9.123(D) Petitioner could

immediately reapply for reinstatement. As punishment, to prevent

Petitioner's reapplication, he was arbitrarily excepted from the court rule

and, effectively required to wait 1,541 days to reapply instead of 180 days.

The retroactive application of these civil sanctions can

not “fairly be said solely to serve a remedial purpose, but

rather can only be explained as also serving either retributive

or deterrent purposes” and are "punishment, as we have

come to understand the term.” U.S, v Halper 490 US 435;

109 S. Ct. 1892, 104 L. Ed. 2d 487 (1989). This decision is

based not on the offense but on the form of punishment and

violates the double jeopardy clause.

Due Process

All of the foregoing facts and reasons regarding ex

post facto and double jeopardy amount to denial of due

process as well. After Petitioner had met all the criteria for

reinstatement, by clear and convincing evidence, by public

hearing before a hearing panel of licensed attorneys, and the

decision to reinstate affirmed on appeal by the Attorney

Discipline Board, the Michigan Supreme Court changed the

rules and declared that Petitioner was ineligible to apply for

reinstatement in the first instance. This defies the legal

"sense of fair play" mandated by this Court and the

Constitution. Galvin v Press, 347 US 522, 530, 74 S. Ct.

737, 742, 98 L. Ed. 911 (1954).

Grievance Administrator states that there is a question

"as to what process is due”. (Res. Brf. p.18) The language

of MCR 9.123(B)(2) has been in effect since 1978. Every

court and every hearing panel has interpreted the rule to

mean that a lawyer whose license to practice has been

revoked may apply for reinstatement five years after the date

of his or her revocation. In Rio Grand Irrigation & C, Co,

y Guildersleeve, 174 US 603, 19S. Ct. 761, 43 L. Ed. 1103

(1898).

A duly authorized rule of court has the

force of law, and is binding upon the court

5

as well as upon the partics to an action,

and cannot be dispensed with to suit the

circumstances of any particular case .. but

once made without qualification, it must

be applied in all cases which come within

it, until it is repealed by the authority

which made it.”

In Harrison v Nelson, 394 U.S. 286, 89S. Ct. 1082,

22 L. Ed. 2d 281 (1969) this Court stated:

We have no power to rewrite the Rules by

judicial interpretations. We have no power

to decide that Rule 33 applies to habeas

corpus proceedings unless, on

conventional principles of statutory

construction, we can properly conclude

that the literal language or the intended

effect of the Rules indicates that this was

within the purpose of the draftsmen or the

congressional understanding.(Emphasis

added)

Similar conclusions have been reached by the Michigan

courts. In Hill v Webber, 50 Mich 142, 15 NW 52 (1883) it

was held that a party is entitled to insist upon strict

compliance with court rules and in City of Detroit v Judge

of Recorders Court, 255 Mich 44; 237 NW 40 (1931) it was

stated that a court "ought not to depart from established

practice suddenly and without notice and to injury of

litigants". In Steward v Poole, 196 Mich App 26; 492

NW2d 475 (1992) the court stated that the interpretation of

a court rule is subject to those principles governing statutory

construction and the court rule should be construed in

accordance with the ordinary and approved usage of the

6

language.

In the instant case, the court violated all of these

principles. Compliance with these principies is the process

due Petitioner.

Respondent repeatedly states that the new five year

post parole requirement is to "ensure that any decision as to

whether an applicant for reinstatement has been truly

rehabilitated is based on a proper foundation.” Respondent

could not cite, if required, more than one or two instances in

the history of the practice of law in Michigan, where a

disbarred lawyer was reinstated and thereafter was

subsequently suspended or revoked for new misconduct.

Actually, the court's decision goes beyond the five

year post parole requirement. MCR 9.123 and Grievance

Administrator v August, 438 Mich 296, 475 NW2d 256

(1991) make clear that there is no permanent disbarment in

Michigan. Contrary to MCR 9.125 and August, the language

of this decision develops a form of selective permanent

disbarment.

Justice Brickley wrote that “even though a period of

time has elapsed since Petitioner was under the supervision

parole authorities, he has been involved in his petition for

reinstatement since his release from parole." Therefore,

because Petitioner was applying for his license, post parole

time could not be considered because Petitioner was under

"similar, if not heightened scrutiny..." Justice Weaver noted

that "Petitioner will remain under our scrutiny and will

probably attempt to conform his conduct to our standard

until he reaches his goal of readmittance” and therefore,

the five year rule is illogical. According to Judge Weaver,

Petitioner can never establish the qualifications to be

readmitted. This reasoning cannot be extrapolated from the

7

aden i diet ail

language of MCR 9.123. This reasoning is clearly a

rewriting of the rules, after the fact, by judicial interpretation

and violates due process.

The court, contrary to Respondent, did not address

the evidence submitted to the hearing panel or the Attorney

Discipline Board. Neither Respondent nor the court contested

the hearing panel and Attorney Discipline Board's findings

regarding Petitioner's establishment of the reinstatement

criteria. The court found lack of eligibility to reapply.

Respondent states that MCL 338.41-338.47 "pertains

only to those occupations and professions regulated by the

executive branch of government.” Respondent cites no

authority for this proposition. The practice of law is a

profession. The statutes speak for themselves and the court

rules must be read in light of the statute. Masonite Corp. v

Martin, 314 Mich 411, 22 NW2d 757 (1946). The due

process mandated by the 14th Amendment has been denied.

Equal Protection

Respondent claims that the only difference between

Petitioner and other disbarred attorneys is that the Supreme

Court's holding provides a method for determining whether

Petitioner has spent adequate “unsupervised” time to enable

a proper evaluation of his rehabilitation and that “such a

distinction has a rational basis." (Res. Brf. p.21) This

statement is absolutely untrue. There is no “method” stated

for determining the amount of “unsupervised time to evaluate

rehabilitation" and no other lawyer seeking reinstatement has

been subject to this "method."

By silence, Respondent admits that a hundred or more

Michigan lawyers, were similarly situated to Petition between

1986 and 1995. All of these lawyers had their licenses

suspended or revoked for criminal or gross misconduct,

8

many of whom were placed on some form of penal

supervision. Respondent further admits that none of these

"similarly situated” attorneys was denied reinstatement

because of his supervision status or required to wait five

years from the termination of such supervision to apply for

reinstatement.’

There is no rational basis for distinguishing Petitioner

from the hundred or more other attorneys, no rational basis

for the retroactive application of this "new rule", and no

rational basis nor legitimate state interest furthered by

utilizing the punishment inflicted on a given disbarred

attorney as opposed to the nature of the offense to determine

fitness to practice law.

In August, the court focused on the offense to

determine fitness to practice:

Obviously, the question whether an attorney

may be safely recommended to the public is a

different inquiry in the case of an attorney

disbarred for corrupting the administration of

law than in the case of an attorney whose

disbarment resulted from conduct unrelated to

the practice of law. (438 Mich at 310)

Petitioner's convictions were unrelated to the practice of law

and the court, to avoid reinstatement, changed the focus.

> i.e. Attorneys James DeVries, ADB File 90-106 RP and Joseph Jerkins,

ADB File 91-61 RP, both from Petitioner's home town, were charged

Both were sentenced to prison with additional supervised release of at

least two (2) years. Both negotiated sentence reductions and suspension

of license instead of revocation in exchange for cooperation. Within six

months of the termination of their supervised releases, both were

reinstated to the practice of law and Respondent did not appeal.

9

RPI. AA te ie ae

The distinction between Petitioner and the other

attorneys similarly situated, is non-existent. The concept of

equal justice under the law requires the state to govern

impartially and it may not draw distinctions between

individuals solely on differences that are irrelevant. Lehr v

Robertson, 486 US 248, 103 S. Ct. 2985, “77 L. Ed. 2d 614

(1983). Equal protection keeps governmental decision makers

from treating differently persons who are in all relevant

aspects alike. Nordlingler v Hahn, _. US _., 112 S. Ct.

2326, 120 L. Ed. 2d 1 (1992).

To withstand intermediate scrutiny under equal

protection, the classification must be substantially related to

an important governmental objective. Clark v Jeter, 486 US

456, 100 S. Ct. 1910, 100 L. Ed. 2d 465 (1988). The extent

of Petitioner's rehabilitation is not in question and retroactive

application of the new rule has no "important governmental

objective.”

The instant case is, allegedly, based in part on The

Matter of Callanan, 440 Mich 1207; 487 NW2d 750 (1992).

This decision was a preemptory reversal order without

consideration of the merits. There was an issue in that case

as to whether his parole had terminated. Immediately after

the preemptory order, Callanan reapplied, was reinstated and

has practiced for two years. Respondent now argues in

Callanan that he should have his license revoked because of

the court's decision in this case. (la-23a) This is the

Circuitous reasoning being utilized by the court to deny equal

protection.

CONCLUSION

Petitioner prays that a Writ of Certiorari be granted.

10

Dated: af sf

Robert A. McWhorter, Petitioner

Michigan Supreme Court

Lansing, Michigan

Order

Entered: August 7, 1992

Michael F. Cavanagh

Chief Justice Charles L. Levin

James H. Brickley

Patricia J. Boyle

Dorothy Comstock Riley

Robert P. Griffin

Conrad L. Mallett, Jr.

Justices

In the Matter of Reinstatement

of EVAN H. CALLANAN, JR.

EVAN H. CALLANAN, JR.

Petitioner-Appeilee,

Vv

GRIEVANCE ADMISTRATOR, No. 93833

Appellant.

On order of the Court, the application for leave to

appeal is considered and, pursuant to MCR 7.302(F)(1) in

lieu of granting leave to appeal, we REVERSE the order of

the Attorney Discipline Board, and ORDER that the

petitioner not be reinstated at this time. The misconduct that

led to the revocation of the petitioner's license to practice

law was substantial and, because the petitioner had spent

little or no time outside the supervision of federal authorities

since his license was revoked, it was not possible for the

la

hearing panel and the Attorney Discipline Board to determine

the present fitness of the applicant for readmission. MCR

9.123(B)(6) and (7). In light of this order, the stay entered

by this Court on July 16, 1992 is VACATED as no longer

necessary.

LEVIN, Justice, states as follows:

I would deny or grant leave to appeal. I adhere to the view

that peremptory reversal should be reserved for cases in

which the law is settled and no factual assessment is

roquired.' In the instant case, as indicated in the peremptory

order, factual and legal assessment is not appropriate.

Further, this Court's peremptory disposition does not comply

with the requirements of Const. 1963, art. 6, §6, which

requires that "[dJecisions of the supreme court, including all

decisions on prerogative writs, shall be in writing and shall

contain a concise statement of the facts and reasons for each

decision...."

The order of peremptory reversal of the Attorney Discipline

Board does not contain an adequate statement of facts or

reasons for decision.

The Hearing Panel of the Attorney Discipline Board ordered

that Evan H. Callanan, Jr., be reinstated subject to certain

conditions. The Grievance Administrator filed a petition for

review with the Attorney Discipline Board, the board

conducted a hearing, and remanded to the hearing panel with

instructions to file a supplement referring to the standards

and criteria approved by this Court in Grievance

Administrator v August, 438 Mich 296, 475 NW2d 256

(1991).

The hearing panel concluded, for reasons stated in its

supplemental report, that Callanan desired in good faith to be

restored to the privilege of practicing law, that five years had

2a

elapsed since revocation of his license, that he had not

practiced or attempted to practice law contrary to the

requirements of the revocation, and that he had fully

complied with the order of discipline. The supplemental

report continued:

"5. From the testimony of the witnesses it appears

that the Petitioner is held in high esteem in his

community and his church in spite of the fact that the

minister and the members of the congregations are

aware of his prior criminal conviction and time in

prison. The testimony further related that he is well

received and respected by all persons in his

community. Further testimony reflected that members

of the church would hold the Petitioner in a position

of trust, further seeking his services were he to be

returned to the practice of law.

"Testimony of the Petitioner reflected that he is

aware of the gravity of his offense and is very eager

to be reinstated to the practice of law. It appears that

there has been no controversy in the operation of the

motel business in which the Petitionier has been

engaged and, therefore, this Panel has concluded that

the Petitioner's conduct since the order of discipline

has been exemplary and above reproach.

"6. From the testimony of the Petitioner, as well as

attorney Robert E. Sage, the Panel concluded the

Petitioner has the proper understanding of and

attitude toward to standards that are imposed on

members of the bar and that he will conduct himself

in conformity with those standards.

"7. The Hearing Panel considered the length of time

the Petitioner has been suspencded and the severity of

3a

the offense for which he was suspended and have

concluded that he can be safely recommended to the

public, the courts and the legal profession as a person

fit to be consulted by others and to represent them

and otherwise act in matters of trust and confidence

and in general to aid in the administration of justice

as a member of the bar and as an officer of the

court.”

The Attorney Discipline Board considered the supplemental

report together with further objections filed by the Grievance

Administrator. The board, in a decision in which all

members of the board joined, stated that it was persuaded the

hearing panel's findings and conclusions had appropriate

evidentiary support in the record, and the order of

reinstatement should be affirmed subject to the terms and

conditions contained in the panel's order, and the further

conditions set forth in the board's order, which included that

Callanan provide evidence that he had been discharged from

parole. It appears that Callanan's parole began no later than

his release from a halfway house in November, 1988.

almost four years ago-it does not readily appear when his

parole actually terminated.

The statement in this Court's order that the misconduct that

led to the revocation of Callanan's license to practice law

was substantial, and, because he had spent little or no time

outside the supervision of federal authorities since his license

was revoked, it was not possible for the hearing panel or the

Attorney Discipline Board to determine his present fitness for

readmission, provides little or no guidance to Callanan, the

public, the profession, hearing panels, and the Attorney

Discipline Board concerning what might constitute an

appropriate period of time in light of the seriousness of the

4a

misconduct.

People v Wright 439 Mich 910, 910-911, 479 NW2d

631 (1992) Levin, J. dissenting); Rock v Chippewa Valley

Bd. of Ed., 430 Mich 314, 322, 422 NW2d 680 1988)

(Levin, J., separate opinion); Grames v Amerisure Ins. Co.,

434 Mich 867, 868-875, 451 NW2d 304 (1990) (Levin, J.

dissenting); People v Little, 434 Mich 752, 769-770, 456

NW2d 237 (1990) (Levin, J. dissenting); People vy Wrenn,

434 Mich 885, 885-886, 452 NW2d 469 (1990) (Levin, J.,

dissenting);Harkins v Northwest Activity Ctr. Inc.. 434

Mich 896, 899, 453 NW2d 677 (1990) (Levin, J.,

dissenting); Dep't, of Social Services _v American

Commercial Liability Ins. Co., 435 Mich 508, 515, 460

NW2d 194 (1990)(Levin, J., separate opinion); Yabr_v

Garcia, 436 Mich 872, 461 NW2d 363 (1990)(Levin, J.

dissenting); Universal Underwriters Ins, Co, v Vallejo, 436

Mich 873, 873-874, 461 NW2d 364 (1990)(Levin, J.

dissenting); People v Stephens, 437 Mich 903, 903-910, 465

NW2d 561 (1991) (Levin, J. dissenting); People v Berkey,

437 Mich 40, 54, 467 NW2d 6 (1991)(Levin, J. dissenting};

Tumer vy Washtenaw Co, Rd. Comm., 437 Mich 35, 38-39,

467 NW2d 4 (1991)(Levin, J. separate opinion); Lepior v

Venice Twp., 437 Mich 955, 956-966, 467 NW2d 811

a assnteap J. a SR UNE

440 Mich __., 486 NW2d 678 (1992)(Levin, a enating).

See Schweiker vy Hansen, 450 US 785, 791, 101 S.

Ct. 1468, 1472, 67 L. Ed. 2d 685 (1981) (Marshall, J.,

dissenting)("A summary reversal is a rare disposition usually

reserved by this Court for situations in which the law is

settled and stable, the facts are not in dispute, and the

5a

decision below is clearly in error"); Leis v Flynt, 439 US

438, 457-458, 99 S. Ct. 698, 708-709, 58 L. Ed. 2d 717

(1979) (Stevens, J. , dissenting)("Summary reversal ‘should

be reserved for palpably clear cases of ...error' Eaton v

Tulsa, 415 US 697, 707, 94 S. Ct. 1228, 1234, 39 L. Ed.

2d 693 [1974][Rehnquist, J., dissenting]").

Michigan Supreme Court

Lansing, Michigan

Order

Entered: November 7, 1995

James H. Brickley

Chief Justice

Charles L. Levin

Michael F. Cavanagh

Patricia J. Boyle

Dorothy Comstock Riley

Conrad L. Mallett, Jr.

Elizabeth A. Weaver

Justices

In the Matter of Reinstatement

of EVAN H. CALLANAN, JR.

EVAN H. CALLANAN, JR.

Petitioner-Appellee,

v

GRIEVANCE ADMISTRATOR, SC 101137

Appellant. ' ADB 92-324-RP

On order of the Court, the application for leave to

appeal is considered and , pursuant to MCR 7.302(F)(1) in

lieu of granting leave to appeal, we REMAND this matter to

the Attorney Discipline Board for reconsideration in light of

this Court's decision in In re Petition for Reinstatement of

Robert McWhorter, 449 Mich 130 (1995).

We do not retain jurisdiction.

Mallett, JR. and Weaver, JJ., would grant leave to

appeal.

Ta

I ceeokiiaieeiainnidi eal

2A shee eS 5 la aD a

I, CORBIN R. DAVIS, Clerk of the Michigan

Supreme Court, certify that the foregoing is a true and

complete copy of the order entered at the direction of the

Court.

» 199_

STATE OF MICHIGAN

ATTORNEY DISCIPLINE BOARD

In the Matter of the Petition for

Reinstatement of EVAN H. CALLANAN, JR.

ADB Case No. 92-324-RP

Petitioner.

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Nicholas Smith, P-20697

Attorney for Petitioner

215 W. Ann Arbor Rd., 3rd Floor

Plymouth, MI 48170

(313) 453-7877

PHILIP J. THOMAS (P-31298)

GRIEVANCE ADMINISTRATOR

Attorney Grievance Commission

By: Richard L. Cunningham (P29735)

Associate Counsel

243 W. Congress, Suite 256

Detroit, MI 48226

(313) 961-6585

ATTORNEY GRIEVANCE COMMISSION'S

SUPPLEMENTAL BRIEF FOLLOWING THE

MICHIGAN SUPREME COURT ORDER OF REMAND

NOW COMES Richard L. Cunningham, Associate

Counsel, Attorney Grievance Commission, and, pursuant to

the Order entered by the Attorney Discipline Board on

November 20, 1995, here provides its brief on the

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applicability of the Michigan Supreme Court's decision in In

re Petition for Reinstatement of Robert McWhorter, 449

Mich 130, (1995), to the present case.

Statement of Relevant Facts

Petitioner Evan H. Callanan, Jr. was tried before a

jury in the U.S. District Court for the Eastern District of

Michigan, and on September 1, 1983 was convicted of

felony offenses including conspiracy to violate RICO,

substantive violations of RICO, three counts of mail fraud,

obstructing a criminal investigation, and making false

declarations before a grand jury. The charges arose from

evidence of Petitioner's involvement in a scheme in which a

Michigan judge received improper kickbacks in exchange for

judicial favors, and from Petitioner's attempts to cover-up

such illegal activity.

7 Petitioner received concurrent sentences of eight years

on each of the RICO charges and five years on the other

counts. The court allowed petitioner to remain free on bond

while he pursued an appeal, but he was suspended from the

practice of law pursuant to MCR 9.120(A)(2). Petitioner's

license to practice law was automatically suspended effective

the date of the jury verdict, and the interim suspension

remained in effect while he appealed his criminal

convictions.

In November 1985 the U.S. Sixth Circuit Court of

Appeals affirmed all Petitioner's convictions, specifically

finding that the evidence was sufficient to sustain the

convictions for conspiracy to violate RICO and the

substantive violations of RICO. United States v Oaoud, 777

F2d 1105, (6th Cir. 1985). Petitioner surrendered to the

appropriate authorities on December 2, 1985, and began

serving his sentence.

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On March 14, 1986 Wayne County Hearing Panel

#20 issued an Order of Revocation based upon these felony

convictions. The final order of discipline provided that

Appellee's license was revoked, nunc pro tunc, effective

September 1, 1983.

While Appellee was serving his prison sentence, the

United States Supreme Court announced in McNally v

United States, 483 U.S. 350, 107 S. Ct. 2875 (1987), that

a prosecution under the mail fraud statute could not proceed

on an “intangible rights theory". The court held that a

defendant could not be punished for a scheme which

deprived a person of the intangible right of honest services,

as the statute covered only tangible rights such as money and

property. Consequently, Petitioner's case came back before

the U.S. Sixth Circuit Court of Appeals, and his convictions

for mail fraud, and RICO violations premised on certain acts

of mail fraud, were vacated. However, the court again

affirmed the convictions an five year concurrent sentences for

obstruction of a criminal investigation and perjury. Callanan

v United States, 881 F2d 229 (6th Cir. 1989).

Petitioner remained incarcerated in _ federal

correctional facilities until November 1988. He was then

placed in a half-way house for several months, and was

placed on federal parole in early 1989.

On or about August 17, 1990, while Petitioner was

still on parole, he filed a petition seeking reinstatement of his

license to practice law. The petition came before Attorney

Discipline Board Tri-County Hearing Panel #75 under ADB

Case No. 90-140-RP, and a hearing was conducted. On May

8, 1991, the hearing panel issued an Order of Reinstatement,

directing that Appellee be reinstated to the practice of law.

The order conditioned Appellee's reinstatement upon

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recertification by the Board of Law Examiners, proof of his

discharge from federal parole and payment of costs in the

amount of $1,774.53.

The Attorney Grievance Commission appealed this

Order of Reinstatement by filing a petition for review under

MCR 9.118. In a brief filed on June 21, 1991, the

Commission argued that Petitioner failed to establish

compliance with MCR 9.123(B) by clear and convincing

evidence. The Commission asserted that since Petitioner

was only recently released from incarceration, and was still

under federal parole supervision, the panel lacked an

adequate basis by which to gauge his reformation.

On August 29, 1991, while the appeal on ADB Case

No. 90-140-RP was still pending before the Attorney

Discipline Board, the Michigan Supreme Court issued its

opinion in Grievance Administrator v August, 438 Mich 296.

In that case, the court held that the nature of the offense and

the time elapsed since its commission and disbarment are

relevant and important considerations in determining whether

a disbarred attorneys should be recommended to the position

of public trust that is held by the members of the bar. The

court determined that an attorney may be denied readmission

on the grounds that sufficient time has not passed to

determine the present fitness of the applicant for readmission.

ADB Case No. 90-140-RP came before the Attorney

Discipline Board for oral arguments on September 11, 1991.

After hearing arguments, the Board remanded the case to the

hearing panel or a supplement report. The Board expressly

ordered the panel to consider the standards and criteria for

reinstatement expressed in Grievance Administrator v

August, supra.

On February 12, 1992, the hearing panel filed a

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Supplemental Report, stating that it had reviewed the matter

"in camera” and had determined it appropriate to affirm its

prior Order of Reinstatement. On April 14, 1992, the

Attorney Discipline Board issued an order affirming the

hearing panel.

The Attorney Grievance Commission then filed an

Application For Leave To Appeal with the Michigan

Supreme Court. The Commission requested review of the

final orders of the Tri-County Hearing Panel #75 and the

Attorney Discipline Board, and asked that the reinstatement

order be stayed pending the appeal.

On July 16, 1992, the Supreme Court issued the stay

requested by the Attorney Grievance Commission. Since

Petitioner had not yet fully met the conditions of

reinstatement set by the hearing panel, he was not yet

readmitted at the time the stay was issued.

On August 7, 1992, the Michigan Supreme Court

issued its Order, under docket number SC 93833, reversing

the Attorney Discipline Board and ordering that Petitioner

not be reinstated to the practice of law. The court determined

that the misconduct which led to the reinstatement was

substantial, and since Petitioner had spent little or no time

outside the supervision of federal authorities it was not

possible to determine his present fitness for readmission. The

court did not indicate what period of time outside supervision

would be sufficient for a proper evaluation of Petitioner's

reformation.

On or about August 26, 1992, Petitioner filed a

Petition For Reconsideration with the Supreme Court. On

November 24, 1992, the court entered an Order denying the

motion for reconsideration.

On December 11, 1992, less than three weeks after

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the Supreme Court denied Appeliee's motion for

reconsideration, Appellee filed a new petition for

reinstatement. The new petition was assigned to Tri-County

Hearing Panel #29 under the file number 92-324-RP.

The Hearing Panel heard evidence on the petition on

May 10, May 24, and June 14, 1993. On October 7, 1993,

the panel issued ins Order Of Reinstatement and Report. In

its report, the panel made the findings that Petitioner was

discharged from parole on April 7, 1992, and that he has

now spent a substantial period of time outside the supervision

of federal authorities.

The Attorney Grievance Commission then filed a

Petition for Review with the Attorney Discipline Board,

appealing the decision of the hearing panel to reinstate

Petitioner to the practice of law. The commission further

requested that Petitioner's reinstatement be stayed, pending

the appeal.

On November 12, 1993, the Attorney Discipline

Board denied the Petition For Stay of Order Of

Reinstatement. Petitioner then complied with the condition

set forth in the Order Of Reinstatement, and on November

16, 1993, was reinstated to the practice of law.

The appeal by the Attorney Grievance Commission

came before the Attorney Discipline Board for oral argument

on December 16, 1993. After hearing arguments of counsel,

the board took the matter under advisement. On September

29, 1994, the Attorney Discipline Board announced, in a 4

to 3 decision, that the hearing panel Order of Reinstatement

was affirmed in all respects. While the Attorney Discipline

Board determined that Appellee was actually discharged from

federal supervision on November 30, 1990, and that there

was a lack of evidentiary support for the hearing panel

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finding that such supervision ended on April 7, 1992, it

affirmed the panel's conclusion that sufficient time had

passed since the end of supervision to make a valid finding

as to Appellee's fitness for reinstatement.

On October 19, 1994, the Attorney Grievance

Commission filed an Application for Leave To Appeal with

the Michigan Supreme Court, therein requesting review of

the Hearing Panel and Attorney Discipline Board Orders

which reinstated Petitioner to the practice of law.

On July 5, 1995, the Michigan Supreme Court issued

its opinion in In re Petition for Reinstatement of Robert A.

McWhorter, 449 Mich 130. In that case, the court found that

the petitioner had not spent adequate time outside the

supervision of parole authorities sufficient to demonstrate that

he has a proper understanding of an attitude toward the

standards imposed on members of the baz or that he will

conduct himself in conformity with those standards. The

court held that the petitioner could not reapply for

reinstatement until five years after the date of his release

from federal parole.

On November 7, 1995, the Michigan Supreme Court

entered an Order concerning the application for leave to

appeal filed by the attorney Grievance Commission on

October 19, 1994 in the present case. In lieu of granting

leave, the Supreme Court remanded the matter to the

Attorney Discipline Board for reconsideration in light of the

Court's decision in McWhorter, supra.

On November 20, 1995, the attorney Discipline

Board entered an Order, therein directing the parties to

present a brief on the applicability of the McWhorter

decision to the present case.

Since receiving the November 20, 1995 Order of the

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Attorney Discipline Board the Attorney Grievance

Commission has conducted additional investigation on the

question as to when Petitioner Evan H. Callanan was

released from federal paroie. Based upon this supplemental

investigation, the Attorney Grievance Commission will

accept, and does not challenge, the Board's determination

that parole ended on November 30, 1990.

Argument One

Petitioner's Reinstatement To The Practice Of

Law Was Premature. There Was Insufficient

Time Between The End Of Petitioner's

Federal Parole And The Reinstatement

Hearing For The Panel To Adequately

Evaluate His Eligibility For Reinstatement.

Petitioner Evan H. Callanan, Jr. was released from

prison in November 1988, but resided in a half-way house

until February 1989. He remained subject to the supervision

of parole authorities until November 1990. The current

petition for reinstatement was filed in December 1992, less

than 25 months after his release from parole. The evidentiary

record for the reinstatement hearing was closed on June 14,

1993, less than 31 months after the expiration of the parole

period. While Tri-County Hearing Panel #29 concluded that

Petitioner had established by clear and convincing evidence

his eligibility for reinstatement under the criteria set forth at

MCR 9.123(B), there was not sufficient time between his

discharge from parole and the presentation of proofs on the

issue to make such a finding.

I Petit for Rei € Rot

McWhorter, 449 Mich 130 (1995), is directly on point.

There the court held that the relevant inquiry in a

reinstatement proceeding is whether a petitioner has spent

enough time outside the supervision of parole authorities in

order for a hearing panel to properly evaluate a disbarred

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attorney's present ability to comport with the fitness

requirements. In making this finding, the court expressly

noted that the extent of parol supervision was not

determinative, and the critical consideration was the fact that

he was on parole.

The court concluded that petitioner McWhorter had

not spent enough time away from the authority of parole

officers to demonstrate by clear and convincing evidence that

he may be safely recommended as a person fit to represent

others in matters of trust and confidence. Likewise, the

court determined that sufficient time had not passed from his

release from parole for him to adequately demonstrate a

proper understanding of, and attitude toward, the standards

imposed on members of the bar. in deciding that an

insufficient time had passed since this petitioner's release

from parole, the court announced a general rule concerning

the minimum time that must pass before such a petitioner

may be permitted to apply for reinstatement. The court set

the minimum tome period at five years from the date of

termination of parole.

Writing for the court, Chief Justice Brickley

announced the five year waiting period, and noted at 449

Mich 142,

We borrow this time span from CR 9.123 and

analogize it to the present case. For the same

reasons, five years is the minimum period

after which a disbarred attorney may be

eligible for reinstatement, we would hold that

it is a sufficient period outside the

supervision of parole authorities an the

contemplation of petition for reinstatement to

fully evaluate his fitness to practice law.

While only Justice Mallet joined with the Chief

Justice in the court's opinion, the separate concurring opinion

of Justice Riley, which was joined by Justice Boyle, makes

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it clear that a majority of the Supreme Court accepts the

bright line rule of a five year minimum waiting period after

termination of parole. Justice Riley's short concurring

opinion leaves no doubt that a solid majority of the court

finds that a disbarred attorneys should not be permitted to

reapply until five years after parole has ended. As she stated

at 449 Mich 143-144,

We agree with Justice Weaver's assessment

that this record calls for the permanent

disbarment of Mr. McWhorter. However, in

the absence of a majority recognizing the

proposition that there should be ‘permanent’

disbarment, with no opportunity ever to

reapply, we join in the ruling of the lead

opinion imposing a five year waiting period

following a period of parole supervision.

The rule requiring a minimum five year waiting

period after the end of parole is clearly applicable to the

present case. It must be remembered that the Michigan

Supreme Court has already reviewed a prior reinstatement

petition by Petitioner Callanan, and has determined that it

would not be possible for a hearing panel to properly

evaluate his eligibility for reinstatement until he has spent a

sufficient amount of time outside the authority of parole

officials. When the Attorney Grievance Commission

challenged the prior order of reinstatement issued in ADB

Case 90-140-RP by an application for leave to appeal, the

Supreme Court peremptorily reversed the decision of the

Attorney Discipline Board and ordered that Petitioner

Callanan not be reinstated. In an Order issued on August 7,

1992, under Supreme Court Case No. 93833, the court

stated:

The misconduct that led to the revocation of

the petitioner's license to practice law was

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spent little or no time outside the supervision

of federal authorities since his license was

revoked, it was not possible for the hearing

panel and the Attorney Discipline Board to

determine the present fitness of the applicant

for readmission. MCR 9.123(B)(6) and (7).

In its action on Petitioner's prior application for

readmission, the Supreme Court made it clear that the serious

nature of the misconduct that led to disbarment required a

substantial period of time outside the supervision of parole

authorities for a proper evaluation of his eligibility for

reinstatement, but the court did not indicate what period of

time was sufficient. With the decision in McWhorter, it is

now seen that any period of time less than five years after

the release from parole is always insufficient for a proper

evaluation in such cases. Thus the finding of Tri-County

Hearing Panel #29, based upon a petition filed less than 25

months after release from parole and testimony taken less

than 31 months after discharge, is not adequately supported.

Argument Twe

Petitioner Should Be Prohibited From

Reapplying For Reinstatement For Another

Five Years. Because He has Been Under

The Scrutiny Of The Disciplinary System,

A Hearing Panel Would Not Yet Be Able

To Safely Judge Whether He Has Now

Petitioner's petition for reinstatement in ADB Case

No. 90-140-RP was denied by the Order of the Michigan

Supreme Court issued on August 7, 1992. Shortly

thereafter, Petitioner requested reconsideration of the denial.

On November 24, 1994, the Supreme Court denied the

motion for reconsideration. Less than three weeks later, on

December 11, 1992, Petitioner filed a new petition for

reinstatement. That second petition resulted in the

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proceedings that are now under review. Since disciplinary

proceedings have been pending continuously since the filing

of this second petition, Petitioner has been under the scrutiny

of teh disciplinary system since he filed that second petition;

The scrutiny to which a person is subject by pending

reinstatement proceedings must be considered similar to the

supervision to which a parolee is subject by "non-rigid”

overview of the parole authorities. As the court recognized

in McWhorter, supra, at 449 Mich 142, N. 16.

We note that even though a period of time has

now elapsed since petitioner was under the

supervision of parole authorities, he has been

involved in his petition for reinstatement since

his release from parole. Therefore, we are

equally unable to safely judge whether

petitioner has now been rehabilitated - ever

though some time has elapsed outside the

supervision of parole authorities - because his

action have been under similar, if not

heightened, scrutiny by the Attorney

Grievance Commission, the hearing panel,

and the Attorney Discipline Board.

The very essence of the McWhorter decision is that

it is not really possible to evaluate whether a person has been

truly rehabilitated until he or she was [has] spent substantial

time outside the scrutiny or supervision of a person or

agency with authority over him or her. Rehabilitation is

demonstrated by a review of what a person has done when

left on his or her own, not what he or she has done while

being watched. Since Petitioner has been under the scrutiny

of the disciplinary system while his petition has been

pending, it is not possible to get a true picture of his

rehabilitation.

It is the actions of a person during the period of time

to which he or she is not subject to supervision or scrutiny

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that shows whether or not he or she has actually been

rehabilitated. In an effort to assist the bar in determining

whether sufficient time has passed outside such supervision,t

eh court in McWhorter held that a minimum period of five

years is always required for a proper evaluation. Even

though the circumstances of any individual case may

establish that five years outside supervision is not sufficient

to make a valid judgment of rehabilitation, no valid decision

can be made without an examination of a petitioner's conduct

for five years outside supervision or special scrutiny.

In the present case, Petitioner's parole expired on

November 30, 1990. Thus the five year period following the

end of parole supervision has expired. However, Petitioner

was under the scrutiny of the disciplinary system during that

period following termination of parole, and has not yet spend

any substantial time completely on his own. When the

Supreme Court stated by its Order of August 7, 1992 that an

insufficient time had passed outside the supervision of federal

authorities to adequately determine his fitness to practice,

Petitioner chose to almost immediately file a new petition

rather than develop a history of actions outside any close

scrutiny. In doing so, Petitioner made it impossible for any

hearing panel to adequately determine his rehabilitation until

at least five years after the resolution of the second petition.

The fact that premature petition for reinstatement, and

the resulting special scrutiny of the disciplinary system, must

extend the period during which a disbarred attorney is

prohibited from seeking reinstatement is implicitly recognized

in McWhorter. In imposing the five year period following

release from federal parole, the court stated at 449 Mich

142,

We are persuaded that this addresses the

problem identified by one commentator: "The

disbarred attorney may file another petition at

a later date. In light of this, it would be

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helpful if the rules provided a minimum

spacing between subsequent petitions to

prevent a lawyer whose petition is denied

from immediately filing another petition.

Such language demonstrates the court's disapproval of

the filing of a new petition for reinstatement directly on the

heels of the denial of a prior petition, and supports the

argument that a petitioner must spend sufficient time outside

the scrutiny of disciplinary authorities before requesting

reinstatement. Respondent should not now be permitted to

file a new reinstatement petition simply because the five year

period following termination of parole has recently expired.

The critical issue is whether sufficient time outside any

special scrutiny or supervision has expired to enable a fair

evaluation of rehabilitation, not simply whether five years

have passed since the end of parole.

By reversing the hearing panel, and denying the

petition for reinstatement, the Attorney Discipline Board will

end the special scrutiny to which Petitioner has been subject

while the disciplinary proceedings have been pending.

Petitioner can then get on with his life, and his true character

will emerge from his actions during the period when he is on

his own. If Petitioner brings a new petition, after awaiting

period of at least five years on his own, a hearing panel

would have a more realistic basis from which to evaluate his

true rehabilitation.

Conclusion

For the reasons herein stated and discussed, the

Attorney Discipline Board should reconsider and vacate its

September 29, 1994 Order Affirming Hearing Panel Order

Of Reinstatement, reverse the Order Of Reinstatement

entered by Tri-County Hearing Panel #29, deny the petition

for reinstatement, and enter an order prohibiting Petitioner

Evan H. Callanan, Jr. from reapplying for reinstatement for

at least another five years.

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Dated:

Detroit, Michigan

December 13, 1995

Richard L. Cunningham (P29735)

Associate Counsel

Attorney Grievance Commission

243 W. Congress, Ste. 256

Detroit, MI 48226

(313) 961-6585

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